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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This unfair labor practice case is before the Authority on the
Respondent's exceptions and the General Counsel's cross-exception to the
attached decision of the Administrative Law Judge. The General Counsel filed an
opposition to the Respondent's exceptions; the Respondent did not file an
opposition to the General Counsel's cross-exception.

The complaint alleges that the Respondent violated section 7116(a)(1),
(5), and (6) of the Federal Service Labor-Management Relations Statute (the
Statute) when it reassigned two bargaining unit employees from positions in the
commissary warehouse area to the commissary produce department without
completing negotiations with the Union over the impact and implementation of
the reassignments and without first providing the Union the opportunity to
invoke the services of the Federal Service Impasses Panel (the Panel) after an
impasse had been reached. The Judge dismissed the section 7116(a)(6)
allegation, and found that the Respondent otherwise had violated the Statute as
alleged. He recommended that the Respondent cease and desist from the unlawful
conduct and take certain affirmative action.

Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the Judge made
at the hearing and find that no prejudicial error was committed. We affirm the
rulings. Upon consideration of the entire record, we adopt the Judge's
findings, conclusions, and recommended order only to the extent consistent with
this decision.

II. Background

The Union represents a unit of employees at Scott Air Force Base (the
Respondent) that includes employees of the Base commissary.(2) The two employees who were
reassigned were members of the pull crew. The pull crew inventoried and
verified grocery needs in the commissary store and then pulled the needed items
from the warehouse shelves and loaded them on pallets for delivery to the
store. Each crew would pull 2,500 to 3,500 cases per shift.

Early in 1991, the Activity began to change its merchandise delivery
system. Under the new "Frequent Delivery System," manufacturers send their
products to distributors who store the merchandise in their own warehouses.
There are five such distributors in the commissary area. Under the new system,
order-writers at the commissary store use hand-held computers to order
merchandise from the distributors who deliver merchandise to the store. When
fully in effect, this method of delivery will eliminate the commissary's
warehouse function and all need for pull crews. By letter dated March 22,
1991, the Director of the Northern Region Air Force Commissary Service advised
commissary officers of the increased use of the Frequent Delivery System and
the significant decrease of warehouse operations.

According to the Judge, by August 1991, there was such "strong
pressure" from management to advance the Frequent Delivery System "that the
workload for pull crews had decreased so markedly that two pull crew positions
had become surplus." Judge's decision at 4. On August 6, 1991, two pull
crew employees, Anita Bell and Billy D. Gray, were told they would be
reassigned to the produce department. By letter dated and received August 7,
1991, the Respondent informed the Union of the reassignments and attached the
employees' old and new work schedules. The Union then asked to meet to discuss
the matter on August 9. Also on August 7, the Commissary Officer told Bell
that "'. . . there is no negotiating available . . .'" Id. at 5,
quoting transcript at 47.

On August 9, the Respondent's labor relations officer, Robert Nelson,
and the commissary store supervisor met with the two employees and Carl Denton,
president of the Union. The Respondent maintained that it had given notice to
the Union because the action was a schedule change, for which notice was
required under Article VII of the parties' collective bargaining agreement, and
that the employees had been assigned to the produce department because the
authorizations for their positions had been moved there from the pull crew.
Denton argued that the two employees should not be reassigned because they did
not want to go to produce. Denton also stated that Bell, in particular,
believed that she had seniority rights and that there were other people with
lower seniority who could be reassigned.

Denton requested another meeting, which was held on August 12. At that
meeting, the Union made the following proposals:

a. Reassign the pull crew in accordance with seniority.

b. Ask for volunteers first. If there are no volunteers, then
reassign the person(s) with the least seniority in accordance with Service
Computation Date first.

c. Allow Ms. Anita Bell 120 days under her old schedule in order to
take care of personal matters.

d. Leave Mr. Gray where he is until he has had an opportunity to
contact his doctor and obtain a release to work in produce due to his diabetes
and the possible impact of the environment on that condition.

Judge's decision at 5-6.

Nelson testified that the Union had raised Gray's diabetic condition at
the August 9 meeting as well as at the meeting on August 12 and that Nelson had
asked for a medical statement both times. Apparently none was produced. Nelson
asked the Union if the four proposals could be addressed individually, but the
Union insisted that they be negotiated as a package.

At the end of the August 12 meeting, Nelson informed Denton that the
Respondent intended to implement the reassignments on the following day. Denton
asked to continue negotiations through the auspices of the Federal Mediation
and Conciliation Service and the Panel but Nelson refused.

On August 12, 1991, the Union delivered a letter to the Respondent's
Personnel Office protesting the implementation announced for the next day,
requesting that the status quo be maintained and that negotiations
continue, and stating that the Union was referring the matter to the Panel. On
August 14, the Union submitted a request for Panel assistance. The Panel
advised Denton and Nelson, by letter dated August 20, 1991, of a request
for Panel consideration of an impasse, "concerning the substance and impact and
implementation of moving the positions of Ms. Anita Bell and Mr. Billy Gray
. . . ." Id. at 7.

The two employees were reassigned to the produce department on August
13, 1991. Bell, a permanent, full-time employee, continued to work the same
hours she had worked on the pull crew until December 1, 1991, when she began
her new schedule. Gray, a part-time employee, experienced changes in his
schedule after reassignment, which he claimed affected his ability to earn
night differentials and made it difficult to maintain the eating schedule
required by his diabetic condition.

By the time of the hearing, a year after the reassignments of Bell and
Gray, the transition to the new warehousing system was nearly complete, all but
one of the pull crew had been reassigned to other jobs, and only a minimal
amount of pull crew work remained.

Section 1: The Employer agrees to do everything possible to avoid or
minimize a reduction-in-force by restricting recruitment and promotions, by
meeting ceiling limitations through normal attrition, and by reassignment of
surplus employees to vacant positions authorized for staffing. The Employer
agrees to notify the Union as far in advance as possible of implementation of
officially approved reductions-in-force affecting the unit. The Employer agrees
to provide the following information at that time so that the Union may prepare
impact and implementation proposals. [There follows specifics concerning the
information and how it is to be furnished]

G.C. Exhibit 2.

All pull crew employees working at the warehouse had the same job
classification and position description and there is no dispute that each was
equally qualified to perform the duties of the pull crew job. Although some of
the members of the pull crew other than Bell and Gray had prior experience in
the produce department, the Judge found that any one of them could have
performed the produce duties. The record does reveal that the Respondent
considered some of the crew members to be better qualified than Bell and Gray
to adapt to the conditions of the new system when it would be implemented.

III. Judge's Decision

The Judge found that there was no dispute that two pull crew positions
had become surplus, and that the Respondent was free to move the two excess
manpower authorizations from the warehouse to the produce department. The Judge
concluded that the elimination of these positions constituted a
reduction-in-force (RIF) and that the parties conceded that Article XIV of
their agreement applied to the situation. According to the Judge, the parties
disagreed only over how the determination should be made as to who would be
reassigned.

The Judge determined that the Union's proposals regarding selection for
reassignment are negotiable procedures under section 7106(b)(2) of the Statute,
citing Authority precedent that such proposals do not directly interfere with
management's rights under section 7106(a)(2)(A) or (C) of the Statute if
management retains the right to establish the skills and qualifications
necessary to perform the work. In that regard, the Judge noted that the eleven
pull crew employees held identical positions, were equally qualified to do the
pull crew work, and were equally capable of performing the required work in the
produce department. Based on his findings that the Respondent had committed
itself in Article XIV, Section 1 of the agreement to reassign surplus employees
to vacant positions and had already determined to fill the produce vacancies
with surplus pull crew employees, the Judge concluded that the Respondent was
obligated to bargain over the proposals.

In reaching this conclusion, the Judge emphasized that at the time of
the refusal to bargain over the reassignments in August 1991, only two pull
crew positions were surplus. He concluded that whether the two employees
selected by the Respondent were competent in the use of hand-held computers,
which would be employed eventually in the new delivery system, was "immaterial"
to the determination that at the time of the two reassignments the proposals
were negotiable because the new positions did not yet exist. Judge's decision
at 14.

The Judge concluded that the Respondent had violated section 7116(a)(1)
and (5) of the Statute when it refused to bargain over the Union's negotiable
proposals concerning selection of employees for reassignment, citing
National Federation of Federal Employees, Local 2096 and U.S. Department of
the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA
834 (1990) and National Guard Bureau, 47 FLRA 1175 (1993). In so
finding, he also concluded that Article XIV, Section 1 does not constitute a
waiver of the Union's right to bargain over the impact and implementation of
reassignments, and that, in the circumstances of this case, the selection of
surplus employees for reassignment was not covered by the parties'
agreement.

The Judge also concluded that the Union's proposals that specifically
concern Bell and Gray are negotiable appropriate arrangements under section
7106(b)(3) of the Statute, and that the Respondent violated section 7116(a)(1)
and (5) by refusing to bargain over those proposals. The Judge dismissed the
section 7116(a)(6) allegation because he found that there had been no
bargaining, and, therefore, that there had been no impasse.(3)

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent argues that the reassignments were covered by the
parties' collective bargaining agreement, and that, therefore, it has
discharged its obligation to bargain over the impact and implementation of the
reassignments through the collective bargaining process. In support of its
position, the Respondent relies on Department of the Navy, Marine Corps
Logistics Base v. FLRA, 962 F.2d 48 (D.C. Cir. 1992), and Internal
Revenue Service, Washington, D.C., 47 FLRA 1091 (1993), in which the
Authority stated that it would no longer apply a waiver analysis to cases where
the underlying dispute is governed by the interpretation and application of
specific provisions of a bargaining agreement.

Reviewing the language of Article XIV, Section 1,
the Respondent argues, first, that the reassignment portion of that provision
was properly invoked because "it was clear to management officials that a RIF
was inevitable for pull crew employees[.]" Respondent's exceptions at 14. The
Respondent also asserts that the reference to impact and implementation
bargaining rights, in the third sentence of Article XIV, applies only when a
RIF occurs. Reading these two parts of the article together, argues the
Respondent, requires the conclusion that "no residual impact and implementation
bargaining rights for reassignments to avoid or minimize RIFs were
contemplated." Id.

In this regard, the Respondent argues that, when read in its entirety,
Article XIV demonstrates that the parties sought to address all issues
concerning impact and implementation bargaining over reassignments to minimize
RIFs. In support, it asserts that it is evident that impact and implementation
was on the minds of the parties because Article XIV references that subject
regarding the implementation of RIFs and that because impact and implementation
bargaining was omitted "in the reassignment portion [of Article XIV], it is
safe to assume the parties consciously omitted it." Id. at 15.
Furthermore, the Respondent contends that reassignments to avoid a RIF require
quick action to be effective, and that, therefore, the Union benefits from the
omission of time-consuming bargaining. The Respondent also notes Denton's
testimony that impact and implementation bargaining was not discussed in terms
of reassignments in lieu of a RIF. Finally, the Respondent relies on the many
reassignment actions it took during the prior two years that did not result in
Union requests to bargain over impact and implementation. In sum, the
Respondent maintains that the matter is covered by the parties' agreement and
that it had no obligation to bargain over the Union's proposals.

In the alternative, the Respondent argues that even if the
reassignments were not covered by the agreement, it had no duty to bargain
because the reassignments did not change the employees' conditions of
employment, which had been established in the parties' agreement.

In addition, the Respondent asserts that the seniority and volunteer
proposals are not negotiable proposals.The Respondent argues
that those proposals interfere with its right to assign work because they do
not leave management the ability to determine which employees have the
necessary skills to perform the "available jobs." Id. at 22. In that
connection, the Respondent contends that the reassigned employees were less
skilled than others in the pull crew at using hand-held computers, which would
be required in the new warehouse operation when it took
effect.

The Respondent maintains that it had no duty to
bargain about the two remaining proposals because there had been no change in
conditions of employment. Nonetheless, it contends that it attempted to bargain
over those proposals because its labor relations officer "believed that the
shift changes were not necessarily covered by the contract provision regarding
reassignments," and because of "concern[] about the health of Mr. Gray[.]"
Id. at 23. Thus, the Respondent contends that it did not refuse to
bargain; rather, it asserts that it was prevented from further attempts to
bargain because the Union "refused to bargain over these two proposals unless
the non-negotiable proposals were included," and "the Union has repeatedly
refused to provide medical documentation regarding Mr. Gray's medical condition
. . . ." Id.

B. General Counsel's Cross-exception and Opposition to Respondent's
Exceptions

1. Cross-exception

The General Counsel excepts to the Judge's finding that the
reassignments were made as a result of a RIF. The General Counsel argues that
Article XIV of the negotiated agreement does not apply to this situation, and
maintains that, contrary to the Judge's finding, the General Counsel never
conceded that point.

The General Counsel notes that RIFs are governed by 5 U.S.C.
§ 3502 and 5 C.F.R. Part 351. According to the General Counsel, those
provisions require that when an agency decides to conduct a RIF, it must
determine the numbers and types of positions to be eliminated and identify the
employees who will be affected, following a specific procedure. The General
Counsel argues that the Respondent did not follow the specified procedure and
produced no evidence to indicate that a RIF was imminent. Rather, the General
Counsel asserts that the Respondent "unilaterally interprets the language [of
Article XIV] to its own benefit and contends that the Article gave it the right
to unilaterally implement these reassignments simply because it
'anticipated' that a RIF 'could' be possible." General Counsel's
cross-exception and opposition at 5 (emphasis in original).

2. Opposition to Respondent's Exceptions

In response to the Respondent's contention that the reassignments are
covered by the parties' negotiated agreement, the General Counsel argues that
even if Article XIV does apply to this situation, the Union explicitly reserved
the right to negotiate impact and implementation issues concerning
reassignments by expressly providing in Article XIV for impact and
implementation proposals.

The General Counsel asserts that the parties' intent in negotiating
Article XIV is evidenced by the testimony of the Union negotiator who stated
that the Union did not intend by the language of the agreement to give up its
right to negotiate over the impact and implementation of reassignments made to
avoid a RIF. The General Counsel argues that it would be "illogical . . . to
include a reference to impact and implementation negotiations within a section
of the contract if [the parties] intended that section to foreclose further
negotiations." Id. at 13. To further indicate such intent, the General
Counsel states that the Respondent's claim that it was obligated under Article
VII of the agreement to notify the Union of schedule changes so the Union could
enter into negotiations over those changes is inconsistent with the
Respondent's contention that under Article XIV it could reassign employees
without negotiating over the reassignments.The General Counsel asserts that the
Respondent's remaining contentions are unsupported by any evidence. The General
Counsel also maintains that the Judge correctly found that the Respondent's
changes in the employees' conditions of employment had an effect that was more
than de minimis and that the seniority and volunteer proposals were
negotiable.

V. Analysis and Conclusions

We conclude, contrary to the Judge, that, by agreeing to the language
of Article XIV, Section 1 of the collective bargaining agreement, the
Respondent satisfied its obligation to negotiate regarding the impact and
implementation of the reassignments at issue in this case.

In U.S. Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), we
set forth a framework for deciding whether an agency has a duty to bargain over
an otherwise bargainable matter by determining whether the matter in dispute is
contained in or covered by a provision in an existing agreement. See,
for example, Sacramento Air Logistics Center, McClellan Air Force
Base, California, 47 FLRA 1242, 1244-45 (1993). In SSA, we stated,
as relevant here, that to determine whether an agreement provision covers a
matter in dispute, we will determine whether the matter is expressly contained
in the collective bargaining agreement. If the language of the agreement
provision does not expressly encompass the subject matter of the proposals, we
will determine whether the subject matter is so commonly considered an aspect
of the matter set forth in the agreement that the subject is "'inseparably
bound up with and . . . plainly an aspect of . . . a subject expressly covered
by the contract.'" 47 FLRA at 1018 (quoting C & S Industries, Inc.,
158 NLRB 454, 459 (1966)) (citation omitted). We stated that "[i]n this
regard, we will determine whether the subject matter of the proposal is so
commonly considered to be an aspect of the matter set forth in the provision
that the negotiations are presumed to have foreclosed further bargaining over
the matter, regardless of whether it is expressly articulated in the
provision." Id. If so, we will conclude that the subject matter is
covered by the agreement provision.

Applying SSA to the facts in this case, we conclude first that
the disputed reassignments of the pull crew employees were taken to avoid or
minimize a potential RIF. As such, the reassignments are clearly encompassed by
the first sentence of Article XIV, which expressly addresses reassignments as a
means of avoiding or minimizing a RIF. In this connection, we conclude that the
second sentence of the provision, which requires notice to the Union of the
implementation of "officially approved" RIFs, and the third sentence, in which
the Respondent "agrees to provide . . . information [at the time of the notice]
so that the Union may prepare impact and implementation proposals[,]"
specifically address RIFs and not reassignments made to avoid or minimize RIFs.
Interpreted in the context of the provision as a whole, we find it reasonable
to conclude that the subject matter of the proposals at issue herein--the
impact and implementation of reassignments made to avoid or minimize a
potential RIF--is inseparably bound up with and plainly an aspect of the
subject discussed in Article XIV so as to foreclose further negotiations on
that matter. In this regard, we find it significant that, in Article XIV, the
parties reached agreement on the use of the reassignments to avoid or minimize
a potential RIF, and also reached agreement on impact and implementation
bargaining regarding other matters.(4) It is clear to us that, in agreeing to this provision, the
parties contemplated, or should have contemplated, that the provision would be
interpreted as foreclosing further bargaining over reassignments to avoid
RIFs.

We recognize that Union President Denton testified that it was not the
Union's intention at the time it negotiated Article XIV to give up its right to
bargain over the impact of any reassignment to avoid a RIF. We also recognize,
however, the Respondent's contention that impact and implementation bargaining
was "on the minds of the parties" during the negotiation of Article XIV and, as
such, the absence of any provision for it in the "reassignment portion" of that
provision means that it is "safe to assume the parties consciously omitted
[impact and implementation bargaining over reassignments]." Respondent's
Exceptions at 15. In our view, having specifically bargained over the
Respondent's obligation to reassign employees to avoid a RIF as well as the
obligation to bargain over the impact and implementation of a RIF, the parties
should have contemplated that further bargaining over the impact and
implementation of reassignments to avoid or minimize a potential RIF would be
foreclosed unless they expressly stated otherwise.(5)

Based on the foregoing, we conclude that the subject
matter of the Union's proposals was covered by the parties' agreement.
SeeNavy Resale Activity, Naval Station, Charleston,
South Carolina, 49 FLRA 52 (1994). Accordingly, we conclude further,
consistent with SSA, that the Respondent was not obligated to bargain
with the Union over the impact and implementation of its decision to reassign
employees to the produce department, and we will dismiss the complaint.(6)

VI. Order

The complaint is dismissed.

Dissenting Opinion of Member Talkin

I would apply the Authority's decision in U.S. Department of Health
and Human Services, Social Security Administration, Baltimore, Maryland, 47
FLRA 1004 (1993) (SSA) to conclude that impact and implementation
proposals regarding the method of reassignment are not contained in or covered
by the agreement so as to foreclose further negotiations on the matter. In my
view, there is neither express language in Article XIV that addresses the
method of reassignment of pull crew employees in the circumstances here, nor
implicit references in the provision to that matter. Rather, I see the subject
matter in dispute as only tangentially related to the provisions of the
negotiated agreement.Accordingly, I would find that the
Respondent had a duty to bargain further on these matters and violated the
Statute when it refused to complete bargaining with the Union over proposals
(a) and (b).(1)

In this regard, I find it significant that Article XIV is entitled
"Reduction in Force." Thus, although Article XIV contemplates the use of
reassignments to "avoid or minimize" a RIF, reassignments are mentioned in
Article XIV only as one of four possible tools for achieving that result.
Moreover, reassignments that arise as a result of bumping or retreat rights are
an aspect of the formal RIF process, but reassignment specifically to
avoid a RIF is not in any way an integral part of that process. In my view,
it is unreasonable to conclude that by negotiating a provision covering RIFs,
the parties also foreclosed further bargaining over each of the enumerated
actions that could be taken instead of a RIF. In other words, I conclude that
bargaining over the reassignments that are at issue in this case is not a
matter that is inseparably bound up with the subject that was negotiated in
Article XIV.

Recognizing that the third sentence of Article XIV is ambiguous in that
it does not specifically state whether the provision contemplates that the
Union may formulate impact and implementation proposals only in the event of an
actual RIF, under SSA I next examine the remaining evidence to ascertain
the intent of the parties in negotiating that provision. As noted by my
colleagues, the only evidence on the record regarding the intent of the parties
at the time Article XIV was negotiated is testimony by Union President Denton,
who had participated in the negotiations. Denton testified that it was not the
Union's intention at the time to give up its right to bargain over the impact
of any reassignment to avoid a RIF. The Respondent offered no contemporaneous
evidence of any contrary intent of the parties. Nor did it offer any evidence
to support its contention in its exceptions that because impact and
implementation was "on the minds of the parties" during the negotiation of
Article XIV, the absence of any provision for it in the "reassignment portion"
of that provision means that it is "safe to assume the parties consciously
omitted it." Respondent's exceptions at 15.

From the foregoing, it is clear to me that, in
negotiating Article XIV, the parties bargained over the subject of RIFs, and
not reassignments. Accordingly, I conclude that the evidence does not establish
that when they negotiated Article XIV the parties should have contemplated that
the provision would bar further bargaining over the impact and implementation
of reassignments made to avoid or forestall a RIF. The reference in Article XIV
to reassignments in a purely hortatory manner should not now serve to bar
impact and implementation bargaining over the type of reassignments at issue
here. Rather, it reflects the fact that reassignments are "only tangentially
related" to that provision," SSA, 47 FLRA at 1019, and should not be
deemed as covered by the parties' agreement.

Accordingly, as in my view the subject of the Union's bargaining demand
is not contained in or covered by the parties' agreement, I conclude,
consistent with the Authority's decision in SSA, that the Respondent was
obligated to bargain with the Union over the impact and implementation of its
decision to reassign employees to the produce department, provided that the
Union's proposals were negotiable and the Union did not waive its right to
bargain in some other manner.(2)

Proposals (a) and (b) require that the Respondent seek volunteers from
the pull crew for the jobs that had been moved to the produce department, and
if there are no volunteers, that the Respondent reassign pull crew employees in
accordance with seniority. Whether a proposal establishing such a voluntary
system is negotiable depends on the specific proposal and the circumstances
involved. For example, National Association of Government Employees,
Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration
Medical Center, Newington, Connecticut, 35 FLRA 513, 519 (1990). Here, the
Respondent argues that proposals (a) and (b) are nonnegotiable because they
interfere with its management right to assign work. I would find that in the
circumstances of this case, the proposals would not directly interfere with
management's right to assign work because the Respondent had determined that
all pull crew employees were equally qualified to perform the work in the
produce department and because those jobs were the only ones available at the
time. Accordingly, as I conclude that the matter involved in this case is not
contained in or covered by Article XIV, I would find that the Respondent
violated the Statute when it failed to complete bargaining with the Union over
proposals (a) and (b).

FOOTNOTES: (If blank, the decision does not
have footnotes.)

Authority's Footnotes Follow:

1. The dissenting opinion of Member
Talkin is set forth at the end of this decision.

2. Effective October 1, 1991, the
commissary systems of the various armed services were merged into a single new
agency called the Defense Commissary Agency (DCA).

3. No exception has been filed to the
dismissal of this portion of the complaint.

4. We agree with the General Counsel
that, contrary to the Judge's finding, there is no evidence in this case that
the reassignments were made as a result of a RIF, but we find this to be
irrelevant in view of our finding that the reassignments were made in lieu
of a RIF, a matter within the purview of Article XIV.

5. In so concluding, we find it
unnecessary to address the Respondent's reliance on the absence of Union
requests to bargain over the impact and implementation of reassignments in the
past. CompareInternal Revenue Service, Washington, D.C. and Internal
Revenue Service, Denver District, Denver, Colorado, 27 FLRA 664, 666
(1987).

6. We find also that the Respondent did
not refuse to negotiate over proposals (c) and (d). The record indicates
clearly that the Respondent was ready and willing to negotiate over those
proposals, but was prevented from doing so by the Union, which refused to
negotiate over proposals (c) and (d) except in conjunction with proposals (a)
and (b). Accordingly, insofar as proposals (c) and (d) are concerned, we base
our dismissal of the complaint on the additional ground that the Respondent did
not in fact fail or refuse to bargain over those proposals.

Dissenting Opinion Footnotes Follow:

1. I agree with my colleagues for the
reasons they stated that the Respondent did not unlawfully refuse to bargain
over proposals (c) and (d).

2. I would also reject the Respondent's
contention that the reassignment of employees from the warehouse operation to
the produce department did not change conditions of employment because in
implementing the reassignments it was merely following the applicable provision
of the parties' agreement. As noted, I would find that the parties' agreement
does not permit reassignments to avoid a RIF without providing the Union an
opportunity to bargain over the impact and implementation of those
reassignments. Accordingly, as the reassignments resulted in changes in the
employees' work schedules, duties, and promotion possibilities, as well as
changes in pay to Gray, it is clear to me that these new circumstances
represented significant changes in conditions of employment that raised a duty
to bargain. See, for example, Veterans Administration Medical
Center, Phoenix, Arizona, 47 FLRA 419 (1993) (agency required to
bargain over a change in the days on which an employee was required to report
to work as part of the employee's regularly established weekly tour of duty
because it was reasonably foreseeable that the action would disrupt
responsibilities and commitments that the employee had made predicated on the
previously scheduled days off); United States Customs Service, Southwest
Region, El Paso, Texas, 44 FLRA 1128 (1992) (change in shifts and
tours of duty had more than a deminimis effect on the employees'
ability to earn overtime, night differential and Sunday premium pay).